Abortion is a safe medical procedure, yet half of Australian women may have difficulty accessing a termination because they live in states and territories that designate it a crime.
Since then, some states and territories have reformed or decriminalised abortion, while others continue to restrict women’s access to abortion in a way entirely inappropriate for the 21st century.
Abortion laws in Australia are all state or territory laws. The Commonwealth is only responsible for the oversight of drugs for medical abortion through the Therapeutic Goods Administration.
Queensland law remains little changed from the 1899 Criminal Code which contains the same wording as the 1861 English Act. Any person who carries out, or assists with, an abortion may be liable to criminal prosecution, including the woman herself.
Any defence hinges on the interpretation of the “surgical operations and medical treatment” defence in section 282 of the Code.
In the 1986 case R v Bayliss, which interprets sections 282 of the criminal code, Justice McGuire found that “in exceptional cases” an abortion would not be unlawful where it was carried out in good faith to avoid “serious danger to the mother’s life or her physical or mental health (not merely the normal dangers of pregnancy and childbirth) which the continuation of the pregnancy would entail”.
In 2009-10, a Cairns couple was charged under the Queensland legislation. Although they were acquitted after a jury trial, they were subject to 18 months of glaring negative publicity.
New South Wales
Abortion has been a criminal offence in NSW since 1900, under the state’s Crimes Act.
NSW case law has established that in certain circumstances, similar to those in Queensland, an abortion would not be unlawful. It also allows for broader considerations of economic and social factors to determine whether continuing the pregnancy poses a serious danger to the woman’s mental health.
Until 1998, the position in Western Australia under the Criminal Code Act 1902 was similar to current Queensland law: unlawful abortion was a criminal offence. Although, there was no case law in WA to determine when abortion was lawful.
Following legislative reform (but not complete decriminalisation) in 1998, abortion is now lawful up to 20 weeks if the woman will suffer “serious danger to her physical or mental health or serious personal, family or social consequences if the abortion is not performed”.